- Sexual Orientation Discrimination
- Is Extended Leave a Reasonable Accommodation?
- Parental Leave
- Pay Disparity
- Religious accomodation in the workplace
- Equal pay and prior salary information
- I quit! How to avoid constructive discharge
- You Can't Shred Email
- Navigating Unemployment Claims
- Considering Criminal History in Pre-Employment Decisions
- Defamation Claims from Former Employees
- Mixed Motive Causation
- Requesting Accomodation: Kowitz v. Trinity Health
- Antitrust Law in Human Resources
- An Evolving Standard: Joint-Employment
- What Does At-Will Employment Mean for Employers?
- Let's Talk About Wages
- THE FLSA: CHANGES ARE COMING
- Follow Up: Obesity and the ADA
- The Importance of Social Media Policies
- Is Obesity a Qualifying Disability under the ADA?
- Retaliation on the Rise: The EEOC Responds
- What Motivates You?
- "But I thought ...
- Who’s expecting? And what is he expecting?
- Are You Still Doing Annual Performance Reviews?
- Who is Your Employee?
- The unpaid intern trap Part II
- “We’ve been the victim of a cyber-attack”
- So, a Hasidic Jew, a nun in a habit and a woman wearing a headscarf walk into your office?
- The unpaid intern trap
- Pregnancy in the workplace
- Let's talk about honesty.
- "Did You Know" Series - Part I
- Conducting an Internal Investigation
- What HR can look forward to in 2015!
- The chokehold of workplace technology
- Does your company have trade secrets?
- North Dakota Construction Law Compendium for 2014
- Does the North Dakota baby boom affect you?
- Ban the Box? Why?
- The end of the world as we know it
- Everybody has an opinion
- Changes, Changes, Changes!
- Nick Grant presents at North Dakota Safety Council's 41st Annual Safety and Health Conference
- Email impairment: A potentially harmful condition
- Are Employers Required to Give Stressed-Out Employees Time Off?
- Can you obtain a credit report when investigating employee wrongdoing?
- Can’t we just sidestep the ACA?
- Should Your Employees Telecommute? Part III
- Should Your Employees Telecommute? Part II
- Should Your Employees Telecommute?
- Proper Investigation of Employee Misconduct
- Battles in the Wellness War
- Rules are rules! Aren’t they?
- What's going on in Bismarck
- A glimpse ahead
- Obesity as a disability under the ADA – reweighing the issue
- What’s next for your business under the Affordable Care Act?
- Criminal Background Checks
- Becoming a lawyer is a process, not an event [Section 5 of 5]
- Congress Says Yes To North Slope Energy Jobs Bill
- Test Your Knowledge of Social Media Policies and Employee Discipline
- Becoming a lawyer is a process, not an event [Section 4 of 5]
- What Every Employer Needs to Know About the NLRA
- Will the 2012 Elections Make A Difference
- Where There's Smoke...
- Dress Code Etiquette: Is Casual Friday Becoming Freaky Friday
- The Next Disaster May Be Yours
- Hostile Work Environment Claims
- North Dakota Employment Law Links
- There's An App For That
- Am I a “Business Associate”? Why Should I Care?
- Do You Recognize a Cat's Paw When You See One?
- Cell Phones Can Cost a Lot, Part II
- Becoming a lawyer is a process, not an event [Section 3 of 5]
- Cell Phones Can Cost a Lot, Part I
- The Economy - What HR Professionals Need To Know
- Becoming a lawyer is a process, not an event [Section 2 of 5]
- Three New Challenges For HR Professionals
Are Employers Required to Give Stressed-Out Employees Time Off?By: Paul Ebeltoft
Unfortunately, for most of us stress resulting from our jobs is a part of life. However, now, more than ever, workplace stress is affecting employees in a profound way. A recent survey showed that 40% of workers reported that their jobs are “very or extremely stressful” (Northern National Life), and 26% reported that they “are often or very often burned out or stressed by their work” (Families and Work Institute). Stress manifests itself in many different ways and can have dire physical, mental or even behavioral effects. According to the Mayo Clinic, stress can cause headaches, muscle aches or problems sleeping, and can also cause irritability, depression or lead to alcohol or drug abuse. Employers can readily see the effects of stress on their employees; however, if an employee says that they are so stressed out that they need time away from work, is that employee entitled to leave under the Family and Medical Leave Act?
The Family Medical Leave Act (FMLA) is a federal law that entitles eligible employees to take unpaid, job-protected leave from work. In order to be eligible for leave, an employee must have worked for a covered employer for no less than 1,250 hours over the past 12 months. A covered employer is an employer who has more than 50 employees each day for at least 20 calendar weeks of the year.
If the employee is eligible, he or she may take up to 12 workweeks of leave over a 12 month period. This leave may be taken all at once, or spread out over the year. However, if an employee wants to use FMLA leave, the leave may only be taken for specific reasons. These reasons include the birth of a child; the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement; to care for the employee’s spouse, child, or parent who has a serious health condition; a serious health condition that makes the employee unable to perform the essential functions of his or her job; or any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty”.
In order for an employee to be eligible to take FMLA leave due to stress, the stress must be so severe that it amounts to a “serious health condition” which renders the employee unable to perform the tasks required by his or her job.
Is Stress a Serious Health Condition Under the FMLA?
In order to be considered a “serious health condition” under the FMLA, the condition must a) incapacitate you for three consecutive days and require ongoing medical treatment, like a follow-up appointment or a prescription; b) require that you stay overnight in a hospital or care facility; or c) be a chronic condition where you are intermittently incapacitated, and require treatment from a healthcare provider at least twice a year. This means that whether or not an employee is eligible for FMLA leave based on stress depends upon that employee’s particular circumstances. What is stressful for one employee may not be stressful for another, and the stress experienced by employees may have varying effects.
What the Courts Have Said
Recent case law has put limitations in place to try and ensure that FMLA leave is not abused by employees who are not really suffering from a serious health condition. One case stated that general complaints of feeling stressed, tired, sick or sad does not amount to a serious health condition warranting leave. Maitland v. Employease, Inc., No. Civ. A. 1:05-cv-0661, 2006 WL 3090120 (N.D. Ga. Oct. 13, 2006). Another case stated that just because an employee says that he or she is “stressed”, does not mean that they are automatically entitled to FMLA leave. Documentation is required to show that the stress experienced by the employee amounts to a serious health condition. Deleva v. Real Mortgage Corp., No. 1:04cv1299, 2007 U.S. Dist. Lexis 45136, at *39 (N.D. Ohio June 21, 2007).
Courts have also put another limitation in place, to protect employers from employees taking advantage of unwarranted FMLA leave. This limitation involves the denial of an employee’s assertion of the “exacerbation theory”. The exacerbation theory involves an argument made by an employee that some action taken by an employer has exacerbated an employee’s existing infirmity, and that due to this exacerbation the employee is entitled to FMLA leave when they would otherwise not be. See Edgar v. JAC Products, Inc., 443 F. 3d, 501 516 (6th Cir. 2006). Courts have stated that if the theory is accepted, it would open the flood gates to factual disputes over whether an employer’s actions worsened an employee’s condition. Id.
How to Reduce FMLA Leave Abuse
In order to try and reduce the instances of FMLA leave abuse amongst employees, it is very important to uniformly apply company leave policies, and be aware of any changes to federal FMLA laws. Managers should be trained to understand the basics of the FMLA so that they can spot potential FLMA issues. Another way to try and reduce abuse of FMLA leave is to ensure that all employees submit written requests for all sick leave or requests for days off. Written requests create a paper trail so that a pattern of abuse of leave can be easily seen.
What Happens if You Wrongly Deny FMLA Leave?
While it is important to ensure that employees are not abusing FMLA leave when they do not really need it, it is also very important to make sure that FMLA leave is not wrongly denied. If FMLA leave is denied, or if there is retaliation by an employer against an employee who has taken FMLA leave, the employee may bring a suit against the employer in court.
For more information on the FMLA, please visit www.dol.gov/whd/fmla.
Reprinted with permission from an article submitted for publication in the January, 2014 Southwest Area Human Resource Association newsletter.